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PROFESSIONAL SERVICES AGREEMENT WITH
JUDY A. SHERMAN FOR HEARING EXAMINER SERVICES
THIS AGREEMENT is made and entered into as of this .:.� day of January 2009, by
and between the CITY OF NEWPORT BEACH., a Municipal Corporation ( "City "), and
Judy A. Sherman, an individual, whose address is 11853 Killimore Avenue, Northridge,
California, 91326 ( "Consultant'), and is made with reference to the following_
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of
the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of Califomia and the Charter of City.
B. Pursuant to Newport Beach Municipal Code Section 1.08.055, City hereby
designates Consultant to provide hearing examiner services for contested
administrative and ,parking citations, as well as tax and administrative penalty
appeals, and such other hearings on administrative matters, citations, appeals
and penalties as are assigned by the Revenue Manager ( "Project "). Such
hearings may include appeals of California Vehicle Code citations and Newport
Beach Municipal Code Title 20 violations.
C. Council Policy F -26 requires City Council to approve the hiring of Hearing
Officers who may hear and consider actions under Title 20. City Council
approved the hiring of Consultant on April 8, 2008.
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member of Consultant for purposes of the Project shall be Judy A.
Sherman.
F. City solicited and received a proposal from Consultant, reviewed and evaluated
the previous experience and expertise of Consultant, and now desires to retain
Consultant to render professional services under the terms and conditions set
fcrth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
A. Term Limit. The term of this Agreement shall commence on the above
written date, and shall terminate on the stb. day of January 2014, unless
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terminated earlier as set forth herein. Consultant has no expectation of future
retention by City after the expiration of this Agreement.
B. Blackout Period. Upon termination of this Agreement, City shall not
retain Consultant for any further professional services for a period of at least one
(1) year from the above date of termination.
2. SERVICES TO -BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit "A" and incorporated herein by reference.
City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Consultant to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays
due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the services to be provided for the Project, each parry hereby
agrees to provide notice to the other parr so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time in writing to the
Project Administrator not later than ten (10) calendar days after the start
of the condition that purportedly caused the delay. The Project
Administrator shall review all such requests and may grant reasonable
time extensions for unforeseeable delays that are beyond Consultant's
control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand- delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services in accordance with the provisions of
this Section and as stated in Exhibit "B ", attached and incorporated herein by
reference. in no event shall the total amount exceed Fifty Thousand and 00/100
Dollars ($50,000.00) without City's prior written approval. No billing rate changes
shall be made during the term of this Agreement without the prior written:
approval of City.
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Consultant shall submit monthly invoices to City reflecting the number of "in
person" parking citation hearings, "written declaration" parking citation hearings,
and all other types of hearings conducted during the preceding month. The
monthly invoice shall reflect the name or number of the case(s) and number of
hours spent on the matter(s). Consultant's bills shall include the name of the
hearing examiner and the date the services were performed. City shall pay
Consultant no later than thirty (30) days after approval of the monthly invoice by
City staff.
City makes no representations or guarantees of the scope or number of
assignments, hearings, administrative appeals, or other matters to be assigned
to Consultant under this Agreement.
5. ADMINISTRATION
This Agreement will be administered by the Revenue Division, Glen Everroad
shall be the Project Administrator and shall have the authority to act for City
under this Agreement. The Project Administrator or his authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
6. CI T Y'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule;
B. Provide the hearing schedules and audio tapes;
C. Designate and provide a location for the hearings to be conducted and for
the hearing materials to be deposited at the conclusion of the hearings;
and
D. Provide parking for the hearing examiner during the time hearings are
scheduled.
7. STANDARD OF CARE
All of the services shall be performed by Consultant. Consultant represents that
she is qualified to perform the services required by this Agreement, and that she
will perform all services in a manner commensurate with community professional
standards.
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Consultant represents and warrants to City that she has or shall obtain ali
licenses, permits, qualifications, insurance and approvals of whatsoever nature
that is legally required of Consultant to practice her profession. Consultant shall
maintain a City of Newport Beach business license during the term of this
Agreement.
Consultant shall not be responsible for delay, nor shall Consultant be responsible
for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, or acts of God, or. the failure of City to furnish timely
information cr to approve or disapprove Consultant's work promptly, or delay or
faulty performance by City, contractors, or governmental agencies.
8. HOLD HARMLESS
Consultant shall indemnify, defend and hold harmless City, its City Council,
boards and commissions, officers, agents and employees (collectively, the
"Indemnified Parties ") from and against any and all claims, damages, suits,
losses, liabilities, costs and expenses (including, without limitation, attorney's
fees and court costs) (individually, a Claim; collectively, "Claims "), regardless of
the merit and /or outcome of any such Claim, arising from or in any manner
related to any intentional, reckless, negligent or otherwise wrongful acts, error or
omissions of Consultant or any person employed by Consultant in the
performance of the services required under this Agreement.
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
actions of the City, erroneous information provided to Consultant by City and
suits for damages regarding decisions made in good faith through the hearing
process by the hearing examiner. Nothing in this indemnity provision shall be
construed as authorizing any award of attorney's fees in any action on or to
enforce the terms of this Agreement. This indemnity shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided
by the Consultant.
9. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
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the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
10. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consuitant on the Project.
11. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his duly
authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
12. INSURANCE
Withoui limiting Consultant's indemnification of City, and prior to commencement
of work, Consultant shall obtain, provide and maintain at her own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Siqnature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
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L Workers' Compensation Coverage. Consultant shall
maintain Workers' Compensation Insurance and E mployer's
Liability Insurance for her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
il. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than One Million and no /100 Dollars ($1,000,000.00)
combined single limit for each occurrence.
E. Endorsements. Each automobile liability insurance policy shall be
endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. Any failure to comply with reporting provisions of the policy shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
iii. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days
written notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
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G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional ;rinds of insurance, which in its own:
judgment may be necessary for its proper protection and prosecution of
the work. In the event the City's Risk Manager determines that additional
insurance is required during the course of the Agreement to insure the
City against demonstrated risks, Consultant shall provide such additional
and reasonable insurance upon terms and conditions that are mutually
agreeable to all parties to continuing any performance under this
Agreement.
13. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred, contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venture or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
14. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the
Consultant under this Agreement will be permitted only with the express written
consent of City. Consultant shall not subcontract any portion of the work to be
performed under this Agreement without the prior written authorization of City.
15. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
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authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
16. CONFIDENTIALITY
All Documents not subject to production under the California Public Records Act,
including drafts,'notes and evidence and documents submitted to Consultant that
result from the services in this Agreement, shall be kept confidential unless City
authorizes in writing the release of information.
17. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
18. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
19. CONFLICTS OF INTEREST
Consultant or its employees may be subject to the provisions of the California
Political Reform Act of 1974 (the "Act "), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the
work performed under this Agreement, and (2) prohibits such persons from
making, or participating in making, decisions that will foreseeably financially
affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
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harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
20. NOTICES
All notices, demands, requests or aaprovals to be given under the terms of this
Agreement shall be given in writing to City by Consultant and conclusively shall
be deemed served when delivered personally, or on the third business day after
the deposit thereof in the United States mail, postage prepaid, first -class mail,
addressed as hereinafter provided. All notices, demands, requests or approvals
from Consultant to City shall be addressed to City at:
Attention: Glen Everroad
Revenue Division Manager
Revenue Division
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3131
Fax: 949 - 644 -3073
E -Mail: everroad@city.newport-beach.ca.us
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Attention:
Judy A. Sherman
11853 Killimore Ave
Northridge, CA 91326
Phone: 818- 363 -2446
Fax: 818- 243 -7890
21. TERMINATION
In the evert that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
In the event of termination under this Section, City shall pay Consultant for
services satisfactorily performed and costs incurred up to the effective date of
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termination for which Consultant has not been previously paid. On the effective
date of termination, Consultant shall deliver to City all reports, Documents and
other information developed or accumulated in the performance of this
Agreement, whether in draft or final form.
Notwithstanding the above provisions, Consultant shall have the right, at its sole
discretion, and without cause, to terminate the Agreement upon providing ninety
(90) days notice.
22. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
23. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
24. INTEGRATED CONTRACT
This Agreement . represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
25. CONFLICTS OIL INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
26. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
27. AMENDMENTS
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This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
28. SEVERAEILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
29. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
30. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
C ff C-�
Assistant City Attorney
For City of Newport Beach
ATTEST:
CITY OF NEWPORT BEACH,
A M �icipal Corporation
By:
H . er Bludau
City Manager for City of Newport Beach
CONSULTANT:
By:_ 2il vpyy By:
Leiiani Brown Judy A. S rman
City Clerk Hearing Officer
Attachments: Exhibit "A" — Scope of Services
Exhibit "B" — Schedule of Billing Rates
I,
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Exhibit "A"
SCOPE OF SERVICES
Consultant shall conduct on -site hearings on contested parking citations pursuant to the
California Vehicle Code, and administrative citations, tax and administrative penalty
appeals for City pursuant to the Newport Beach Municipal Code, including but not
limited to, any alleged violations under Title 20. The hearings shall be held in
accordance with applicable California and municipal law recognizing the Consultant's
obligation to provide independently reasoned decisions. The adjudication shall include
hearings in person, by written declaration, and by telephone.
Hearings shall be conducted on the days, during the hours and at a location designated
by City and agreeable to Consultant. Hearings shall be audio - recorded by Consultant.
City shall provide the audio recorder; Consultant shall return the recorder to City; and
City will maintain the recordings for the length of time it designates.
Consultant shall submit written decisions for each hearing in a format designated or
agreed to by City. Consultant is willing to provide a computer generated disposition,
with justification, which shall be transferred to City or other entity designated by City via
e -mail, removable media, or as mutually agreed upon by the parties. Consultant is
responsible for supplying the computer system needed for the disposition and its
delivery.
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Exhibit "B"
SCHEDULE OF BILLING RATES
Consultant shall provide these adjudication services for $15.00 per parking citation for
in- person hearings, hearings submitted by written declaration and failures to appear;
and $60.00 per hour for all other administrative hearings. The total amount billable
under this Agreement shall not exceed $50,000.00 without City's prior written approval.
Consultant requires a minimum of 32 citation cases, per 8 hour day or 8 billable hours
of administrative cases or a combination of parking citations and administrative
hearings resulting in a minimum of 8 hours per day.
Consultant is responsible for all travel and phone expenses. City shall provide parking
to Consultant when Consultant is providing on -site services.
Consultant shall present City with an invoice reflecting the hearings conducted and
expenses incurred by Consultant during the prior month. Back -up sheets consisting of
the daily schedules of cases will be attached to the invoices. Invoices shall be paid by
City within thirty (30) days of submission.
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